# Amicus Curiae Brief — Barnhart v. Sigmon Coal Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0453%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 438

## Text

Supreme Conrt, US.
FILED
JUL 23 2001
No. 00-1307
| COO me eK
IN THE

Supreme Court of the Gnited States

LARRY G. MASSANARI,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Petitioner,

V.

SIGMON COAL COMPANY, INC. ET AL.,
Respondents.

On Writ of Certiorari
To the United States Court of Appeals
For the Fourth Circuit

BRIEF AMICUS CURIAE OF
BELLAIRE CORPORATION,
IN SUPPORT OF RESPONDENTS

THOMAS A. SMOCK DONALD B. AYER

MICHAEL D. GLASS (Counsel of Record)
Polito & Smock, P.C. JONATHAN C. ROSE

Four Gateway Center CYNTHIA L. BAUERLY

Suite 400 Jones, Day, Reavis & Pogue
444 Liberty Avenue 51 Louisiana Avenue, N.W.
Pittsburgh, PA 15222 Washington, D.C. 20001
(412) 394-3333 (202) 879-3939

Counsel for Amicus Curiae

i
QUESTIONS PRESENTED

1. Whether the Combined Fund provisions of the Coal Act
should be construed to impose retroactive liability upon
successors in interest to signatory operators, even though the
statute’s unambiguous language does not so provide.

2. Whether statutory language that is_ entirely
unambiguous, both on its face and when viewed in context
with other portions of the same statute, and which if applied as
written it would withstand a constitutional challenge under
rational basis scrutiny, may be interpreted and applied in a
manner contrary to its meaning.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ................0.00005. i
TABLE OF AUTHIORITIES ..... cc ccc ccccccccnees iil
STATEMENT OF INTEREST ..................5.. l
EET There is no issue in this case about whether any retired miners or their
dependents will receive health care benefits. The Act assures coverage for
those individuals whether or not the Commissioner assigns to entities such
as Respondents or amicus Bellaire liability to the Combined Fund.

4

In R.G. Johnson Co. v. Apfel, 172 F.3d 890 (D.C. Cir.
1999), the District of Columbia Circuit Court of Appeals, by
a 2-1 vote, reached the opposite conclusion. While conceding
that the literal language of the statute excludes successors in
interest to signatory operators from the definition of related
persons, the court concluded “that because such an
interpretation would frustrate the clear intent of Congress . . .
‘related person’ must be construed to include a successor in
interest to a signatory operator.” /d. at 891-92. It reached this
conclusion in light of Congress’s stated intention, in a note to
the Act’s first section, to impose financial responsibility on
“persons most responsible for plan liabilities,” and the court’s
inability to think of any “reason why Congress would have
intended to impose liability” on a successor in interest to a
related person, but not on a successor in interest to the
signatory operator. /d. at 895.

The Third Circuit Court of Appeals followed the reasoning
of R.G. Johnson and held that the literal application of section
9701(c) of the Coal Act produced “‘a result [that was]
demonstrably at odds with the intentions of the drafters.”
Aloe Energy v. Apfel, No. 99-3915, slip op. at 8 (3d Cir. 2000)
(quoting R.G. Johnson, F.3d 890 (D.C. Cir. 1999).

I. The Statutory Language At Issue Is Entirely
Unambiguous In Imposing No Retroactive Liability
On Pre-Act Successors In Interest Of Signatory
Operators

All of the judges who have labored on these cases,
including those judges who ultimately declined to follow the
literal language, agree that the words of the statute are
unambiguous in extending the status of “related person” to
successors in interest of anyone otherwise fitting the
description of “related person,” and in not extending that status
to successors in interest of parties defined as “signatory

5

operators.” A fuller consideration of the Coal Act’s relevant
provisions confirms this judgment, as well as the further
conclusion that the statute affords no other basis on which to
impose retroactive liability on pre-Act successors in interest
of signatory operators.

The Coal Act addresses separate obligations for retiree
health care benefits arising in connection with two separate
funds—the Combined Fund, 26 U.S.C. §§ 9701-9708, and the
1992 UMWA Benefit Fund, 26 U.S.C. § 9712—as well as in
connection with Individual Employer Plans, 26 U S.C. § 9711.
Only the provisions concerning the Combined Fund are at
issue in this case.”

Those provisions place primary liability on a signatory
operator, who becomes the “assigned operator” under section
9704(a), for whom the retiree worked in the past. 26 U.S.C.
§ 9706(a). The Act also provides that where a person becomes

* See Pet. App. 26a (text is “clear and unambiguous”); Pet. App. 39a
(“literal reading . . . unambiguously excludes successors in interest to
signatory operators”) (Murnaghan, J., dissenting); R.G. Johnson, 172 F.3d
at 891 (“we cannot fault the district court’s literal reading of the
definition”); id. at 896 (the definition “excludes successors in interest to
signatory operators”) (Randolph, J., dissenting); Aloe Energy, slip op. at
7-8 (relying entirely on R.G. Johnson, and quoting its conclusion that the
“literal application of [the] statute will produce a result demonstrably at
odds with the intentions of the drafters.”’)

* The Combined Fund, established by the 1992 Coal Act, covers miners
who retired prior to July 20, 1992. 26 U.S.C. § 9703(f). Retired miners
whose benefits are provided by Individual Employer Plans, which were
required to be created under 1978 and later wage agreements, are covered
by section 9711. The 1992 Benefit Plan is established by section 9712 and
covers those miners who retired between July 20, 1992 and September 30,
1994.

6

a successor of an assigned operator after enactment of the Act,
the assigned operator may—but need not—transfer liability for
Combined Fund beneficiaries to that successor. § 9706(b)(2).
When that occurs, the assigned operator remains liable as a
guarantor of the benefits. /d. The statute contains no
provisions of any sort addressing the liability to the Combined
Fund of entities which became successors in interest to
signatory operators before the enactment of the Act. As a
result, the statute unmistakably provides that prospective
liability of successors to signatory operators—that is, resulting
from transfers occurring after enactment of the Act—is
optional, and may result from a voluntary agreement of the
parties to the transaction. At the same time, the Act fails to
impose any retroactive liability upon successors or successors
in interest to such operators based on pre-Act transfers.

The provisions further state that any related person of an
assigned operator shall be jointly and severally liable for any
premium owed by the operator. § 9704(a). Related persons,
in turn, are explicitly defined to include three categories of
entities related to a signatory operator in specified ways,
including where they are under common or shared control.
§ 9701(c)(2)(A)(i-iii). The Act also provides that successors
in interest of related persons so defined shall themselves be
related persons.° Jd. The status of related persons based on

° Bellaire notes that the Commissioner made each of the assignments of
Cambria and ICC retirees to Bellaire on the basis that it is a “successor”
to those entities, not a “successor in interest.” The Commissioner
apparently ignored the fact that Congress employed the two terms in
different provisions of the Coal Act in such a way that they clearly have
separate and distinct meanings. See Holland v. New Era Coal Co., 179
F.3d 397, 402 (6th Cir. 1999). The court in Holland relied on Treasury
Regulation § 1.1503-2(c)(12) and found that “successor in interest”
requires a substantial transfer of assets or stock so that the acquiring
corporation succeeds to the tax attributes of the acquired corporation.
“Successor” is a general term, encompassing a broader set of transactions
and resulting entities. Because only “successors in interest” are liable

7

the relationships defined in section 9701(c)(2)(A)(i-ili) is to be
determined as of July 20, 1992, 106 days prior to enactment on
October 24, 1992, unless the signatory operator is then no
longer in business. In that event the determination is to be

made as of the time just before the operator ceased to be in
business. § 9701(c)(2)(B).

As a result of these related person provisions, the statute is
explicit that a successor in interest of an entity meeting the
definition of related person on July 20, 1992 is itself also a
related person. § 9701(c)2)(A). Thus, post-Act successors in
interest of related persons have liability under the Act. At the
same time, retroactive liability of successors in interest to
related persons can arise in only limited circumstances. First,
because the Act states that related person status is generally to
be determined as of July 20, 1992, entities that become
successors in interest to related persons (as determined on
July 20, 1992) prior to the date of enactment (October 29,
1992), are in fact related persons themselves. Second, the
same section also provides that if a signatory operator is no
longer in business on July 20, 1992, related person status is to
be determined at the time just before that operator ceased to
exist. In that case, those who became successors in interest to
related persons after the date the signatory operator went out
of existence are also “related persons” under the Act, even if
the succession occurred prior to the Act. Other than these two
instances, the Act imposes no retroactive liability on
successors in interest to related persons, because there can be

under section 9701(c)\(2)A), Bellaire assumes that the Commissioner used
“successor” imprecisely when he meant “successor in interest.”
Whichever term is used, as explained below, Bellaire is a successor in
interest to a signatory operator, not a related person, and the Act excludes
it from liability.

8

no successor in interest to a related person before the related
persons are identified.’

The Government claims that the language of the Act is
actually ambiguous and that various extrinsic indications of
legislative intent mandate retroactive liability for Respondents.
It argues that the definition of “related person” includes
successors in interest to signatory operators because each of
the three statutory categories of related persons is defined in
terms of entities related in certain ways to a signatory operator.
U.S. Br. at 24. This argument does not, however, succeed in
creating ambiguity sufficient to justify a search for meaning
outside the text of the statute. As the Fourth Circuit pointed
out, the suggested interpretation necessitates accepting the
conclusion that a signatory operator is a related person to
itself, a proposition that is difficult to grasp, let alone to accept
as true. Pet. App. 25a, (citing R.G. Johnson, 172 F.3d at 894).

’ Even the Commissioner agrees that Congress intended that, in cases of
pre-Coal Act succession where the seller or a related person remains in
business for purposes of the Coal Act, liability to the Combined Fund
should rest with the seller signatory operator or its related persons, and not
with any successor in interest, thus avoiding retroactive imposition of
liability on successors in interest in that circumstance. In Eastern
Enterprises v. Chater, 110 F.3d 150, 154 (1st Cir. 1997), rev'd on other
grounds sub nom., Apfel v. Eastern Enterprises, 524 U.S. 498 (1998), the
Commissioner successfully resisted the argument of a pre-Act seller of
coal assets that the successor company, rather than the original signatory
operator, should bear the Coal Act liability. In upholding the
Commissioner’s position, the First Circuit noted the Act’s express
provisions assigning responsibility to the signatory operator, and rejected
the argument that “Congress overlooked the possibility of assignment to
successors” in interest of such an operator. The court reasoned that
Congress is generally presumed to act “intentionally and purposely” when
it “includes particular language in one section of a statute but omits it in
another section of the same Act.” 110 F.3d at 155 (quoting Brown v.
Gardner, 513 U.S. 115, 120 (1994)).

la

- 9

Nor is any ambiguity concerning the meaning of the statute
created by the argument offered by the Combined Fund, Br. at
22, that the statutory definition of “signatory operator” should
itself be read to encompass successors in interest to signatory
operators. This assertion is made by reference to general
definitions of “person” and “company” which appear in
sections one and five of Title 1 of the U.S. Code, and by
linking those two definitions together in a manner that is
fallacious on a number of grounds. Most obviously, these
generic provisions of Title 1 are inapplicable because the Coal
Act specifically addresses the liability of successors to a
signatory operator with assigned liability to the Combined
Fund under the Act, 26 U.S.C. § 9706(b)(2). That section
provides that, following enactment of the Act, liability may or
may not, by agreement, be transferred to the successor. The
Coal Act thus expressly contradicts the assertion that
responsibility to the Combined Fund is passed automatically
from a signatory operator to its successor or successor in
interest based on general definitions in Title 1.

Despite the lack of ambiguity, the Government argues for
expanding the statutory definition of related person beyond
that found in the statute based on broad notions of the purpose
of the Coal Act. The question thus presented is whether the
Coal Act should be construed to impose retroactive liability on
SUCCESSOTS In interest to signatory operators, even though its
unambiguous language does not do so.

Il. This Court’s Cases Dictate That Unambiguous
Statutory Language Must Be Applied As Written
Unless The Result Would Be Absurd Or
Demonstrably At Odds With The Intentions Of The
Drafters

It is clear from this Court’s decisions that where statutory
language is unambiguous, it should be applied in accordance
with its terms except in rare circumstances. What is less clear
is the precise nature of the unusual circumstances that justify

10

a court’s amendment of the particular words selected by
Congress.

Most commonly, this Court has stated the rule that the plain
and unambiguous language of a statute must be followed
unless the literal construction is “so absurd or illogical that
Congress could not have intended it.” E.g., Conroy v.
Aniskoff, 507 U.S. 511, 516 (1993). This Court has articulated
the level of absurdity required to justify departure from the
letter of the law as that which is “so gross as to shock the
general moral or common sense,” Crooks v. Harrelson, 282
U.S. 55, 60 (1930), or which leads to “wholly impracticable
consequences.” Caminetti v. United States, 242 U.S. 470, 490
(1917).

As nearly categorical as this language at first sounds, it in
fact fails to define the range of considerations by which the
absurdity or illogic of the textual result is to be assessed. A
court might find a statute to be absurd or illogical because,
when its separate provisions are viewed together, they are seen
to be incongruous or inconsistent with each other.
Alternatively, if a court is permitted to look beyond the statute
itself, absurdity, illogic, or incongruity may be found where
the statutory language in question is fully consistent with other
provisions of the statute, on the ground that it is contrary to
some notion of the statute’s intent drawn from considerations
extrinsic to the statute itself. Legislative history, in any
number of forms, could lead a court to this conclusion. What
requires clarification is when, if ever, in assessing absurdity
that may justify negating the clear meaning of a statute’s
words, a court may consider these extrinsic factors beyond the
language of the statute itself.

A second test regularly articulated by this Court for
determining whether to depart from the unambiguous literal
language of a statute requires the determination of whether
“the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.”

11

United States v. Ron Pair Enter. Inc., 489 U.S. 235, 242
(1989) (quoting Griffin v. Oceanic Contractors Inc., 458 U.S.
564, 571 (1982)). Where that is true, this Court has stated
“those intentions must be controlling” over the statute’s literal
words. Griffin, 458 U.S. at 571. Once again, while this
language also clearly contemplates that the literal language
will govern except in “rare cases,” Ron Pair, 489 U.S. at 242,
the test is indeterminate in failing to define the sources to be
relied upon in divining the “intentions of [the] drafters.” If
such intentions must be drawn from the language of the statute
itself—perhaps from other sections, with which the language
at issue is in conflict—then the literal language must govern
except where other portions of the same enactment render the
statute, as thus read, irrational or inconsistent. If, alternatively,
the “intentions of [the] drafters” may be discerned from
materials outside of the statute itself, then the way is open for
a statute’s unambiguous words to be trumped by legislative
reports and by extrinsic arguments of sponsors and others.

In one case, this Court injected additional uncertainty into
this inquiry by suggesting that a court should look beyond the
plain meaning of an unambiguous statute where the result
“seems inconsistent” with the intent of Congress. See Public
Citizen v. United States Dep't of Justice, 491 U.S. 440, 455
(1989). This directive suffers not only from the uncertainty
discussed above, but also from a lack of clarity as to the degree
or character of the perceived inconsistency. That same
decision goes on to suggest that, perhaps, no actual
inconsistency is required at all, by stating that a court is
justified in looking beyond the literal text “when the result it
apparently decrees is difficult to fathom.” /d. The level of
subjectivity imported by this standard into the process of
reading statutes is substantial. Some courts may have an easier
time “fathoming” certain results than other courts, and how
much “difficulty” is enough to justify departing from the
statutory language is left undefined.

12

Even more severe problems inhere in other articulations by
this Court. In Church of the Holy Trinity v. United States, 143
U.S. 457, 459 (1892), the Court found it proper to rely on the
“spirit” of a statute rather than the plain meaning of its text,
where “the whole legislation or . . . the circumstances
surrounding its enactment . . . makes it unreasonable to believe
that the legislator intended” it to be read in accordance with its
literal language. This language, which has been much
discussed during the intervening century,* leaves open-ended
not only the range of considerations properly to be considered
in determining whether the literal language should be ignored,
but also the breadth of resources to be referenced to identify
the statute’s “spint” from which its meaning may be derived.

Accordingly, as more fully discussed below, there is a need
for clarification of the circumstances under a court may
override unambiguous statutory language.

Ill. The Principle Of Separation Of Powers Demands
That Unambiguous Statutory Language Should Be
Given Effect In Accordance With Its Terms, Unless
So Read It Is Invalid Under Rational Basis Scrutiny

Amicus Bellaire submits that the ambiguity inherent in the
standards articulated in this Court’s opinions raises serious

® See Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit,
Letter and History in Statutory Interpretation, 100 Coium. L. Rev. 901
(2000) (collecting discussion of the case in Supreme Court decisions,
articles by members of the Court and at oral argument); Adnan Vermeule,
Legislative History and the Limits of Judicial Competence: The Untold
Story of Holy Trinity Church, 50 Stan. L. Rev. 1833 (1998) (asserting that
the Court’s selective reading of legislative history in Holy Trinity led it to
an incorrect conclusion about Congress’ intent in passing the law at issue).

Justice Kennedy's concurrence in Public Citizen criticizes Holy Trinity's
“unhappy genesis” and “unwelcome potential,” in allowing “judges to
substitute their personal predelictions for the will of the Congress.” Public
Citizen, 491 U.S. at 473-74 (Kennedy, J., concurring).

13

probiems of separation of powers in cases like the present one,
where legislation enacted by Congress is entirely unambiguous
on its face.

While “[i]t is emphatically the province and duty of the
judicial department to say what the law is,” Marbury v.
Madison, | Cranch 137, 177, 2 L.Ed. 60 (1803), it is
equally—and emphatically—the exclusive province of the
Congress not only to formulate legislative policies and
mandate programs and projects, but also to establish their
relative priority for the Nation. Once Congress,
exercising its delegated powers, has decided the order of
priorities in a given area, it is for the Executive to
administer the laws and for the courts to enforce them
when enforcement is sought.

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978). As
Justice Kennedy noted, concurring in Public Citizen, the
absurdity exception to the application of a statute’s plain
meaning “remains a legitimate tool of the Judiciary . . . only so
long as the Court acts with self-discipline by limiting the
exception to situations where . . . it is quite impossible that
Congress could have intended the result.” 491 U.S. at 470-71.
Otherwise, it amounts to an encroachment on one of the
“central prerogatives” of the legislature—to enact legislation.
See Loving v. United States, 517 U.S. 748, 757 (1996).

Without question, the case before the Court, in which
legislative language can be said to be utterly clear and
unambiguous on its face, is not the most common situation. In
the more usual case, where the literal meaning is debatable,
various principles of statutory interpretation are applied in
order to discern the meaning of the language used. In the case
of ambiguous statutory language, there is room for
disagreement about the reliance properly to be placed on
various forms of legislative history, and even concerning the
propriety of considering factors separate and apart from both

14

the legislation itself and its circumstances of enactment.’
There, because there is doubt about the meaning of the words
enacted, at least it cannot be said that the court is simply
invalidating the language chosen by Congress and substituting
its own.

* This Court has relied on all of the following sources in determining the
meaning of legislation: committee reports; sponsor statements; rejected
proposals; floor and hearing colloquy; nonlegislative drafters and
sponsors; and legislative silence and subsequent history. See William N.
Eskndge. The New Textualism, 37 UCLA L. Rev. 621, 636-40 (1990).
Compare Garcia v. United States, 469 U.S. 70, 76 (1984) (the
“authoritative source” of Congressional intent is found in the Committee
Reports on the bill; eschewing reliance on statements of individual
members); with Brock v. Pierce County, 476 U.S. 253, 263 (1986)
(statements by individual legislators provide evidence of Congress’ intent
when they are consistent with the statutory language and other legislative
history) (citation omitted); and Community for Creative Non-Violence v.
Reid, 490 U.S. 730, 744-45 n.11 (1989) (relying on report of the “Joint
Committee of the American Book Publishers Council and the American
Textbook Publishers Institute” in construing the Copyright Act); with
American Trucking Ass'n Inc. v. Atchison, Topeka and Santa Fe Ry., 387
U.S. 397, 417-18 (1967) (refusing to consider administrative agency
advocacy in support of legislation as part of legislative history).

The Court has held both that reliance on subsequent legislative history is
“dangerous” and that it is “entitled to great weight.” Compare, Solid
Waste Agency of N. Cook County v. United States Army Corps of Engrs,
531 U.S. 159, 170 (2000) (“subsequent history is less illuminating than the
contemporaneous evidence”) (internal citation omitted); South Dakota v.
Yankton Sioux Tribe, 522 U.S. 329, 355 (1998) (“the views of a
subsequent Congress form a hazardous basis for inferring the intent of an
earlier one’’) (internal citation omitted); United States v. X-Citement Video,
Inc., 513 U.S. 64, 77 n.6 (1994) (“the views of one Congress as to the
meaning of an Act passed by an earlier Congress are not ordinarily of great
weight . . . and the views of the committee of one House of another
Congress are of even less weight”) with Loving v. United States, 517 U.S.
at 770 (“[s}ubsequent legislation declaring the intent of an earlier statute
is entitled to great weight in statutory construction”) (internal citation
omitted); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380-81 (1969).

15

Such judicial legislation is precisely what occurs when a
statute’s meaning is free from doubt, but a court nevertheless
declines to apply it as written, instead assigning to it a
different meaning because the court perceives that extrinsic
considerations suggest a contrary intent. Separation of powers
is offended not once but twice in such cases—first, by failing
to enforce the enactment as indisputably written, and again, by
giving force to an enactment that the legislature never adopted.

To avoid this result, amicus Bellaire urges the Court to
adopt a rule of construction applicable only in a case such as
this one, where the meaning of the literal language is
unmistakable. Because the failure to follow such language
amounts to not only its invalidation, but also to the
substitution of an alternative enactment, Bellaire suggests that
the unambiguous literal language should be followed, except
in those circumstances where enforcement of the words as
written would be unconstitutional.

This approach makes directly relevant this Court’s
numerous decisions in cases where statutory classifications are
challenged on the basis that they offend the Equal Protection
or Due Process Clauses. Under those cases, statutory language
is enforced as written, and the constitutional challenge is
rejected, regardless of Congress’ actual intent, if there is any
conceivable basis on which it can be said to be rational.

“In areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor
infringes fundamental constitutional nghts must be upheld
against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for
the classification.” FCC v. Beach Communications, Inc., 508
U.S. 307, 313 (1993). Accord McGowan v. Maryland, 366
U.S. 420, 425-26 (1961) (“A statutory discrimination will not
be set aside if any state of facts reasonably may be conceived
to justify it.”). It is enough that the Court “be able to perceive
a basis upon which the Congress might resolve the conflict as

= 16

it did.” Katzenbach v. Morgan, 384 U.S. 641, 653 (1966).
Accord Nordlinger v. Fiahn, 505 U.S. 1, 11 (1992) (requiring
only some “plausible” policy reason to support a statutory
categorization).

Likewise, where legislation is challenged under the Due
Process Clause, a court’s authority does not reach the question
“whether the Congressional judgment expressed . . . is sound
or equitable, or whether it comports well or ill with the
purposes [of] the act. . . . [T]he Due Process Clause can be
thought to interpose a bar only if the statute manifests a
patently arbitrary classification, utterly lacking in rational
justification.” Flemming v. Nestor, 363 U.S. 603, 611 (1960).
This Court thus seeks explanations for legislative actions
which meet only a minimal level of rationality. For example,
in Ferguson v. Skrupa, 372 U.S. 726, 731 (1963), the Court
upheld a state law criminalizing certain conduct, stating that
“we refuse to sit as a ‘superlegislature to weigh the wisdom of
legislation.’” (internal citation omitted).

' A statute imposing obligations retroactively facés
heightened scrutiny under a due process challenge because its
obligations are based on conduct which occurred in the past,
over which the party adversely affected has no continuing
control. Because “retrospective laws are, indeed, generally
unjust,” 2 J. Story, Commentaries on the Constitution § 1398
(Sth ed. 1891), this Court has held that such enactments should
be subjected to somewhat closer scrutiny. Such retroactive
legislation, however, is sometimes upheld against
constitutional challenges. In Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1 (1975), for example, the Court upheld the
retrospective imposition of liability for black lung benefits
upon former employers, on the ground that it was justified as
a “rational measure to spread the costs of the employees’
disabilities to those who have profited from the fruits of their
labor.” /d. at 18. “It is enough to say that the Act approaches
the problem of cost spreading rationally; whether a broader

17

cost-spreading scheme would have been wiser or more
practical under the circumstances is not a question of
constitutional dimension.” /d. at 19. Accord Pension Benefit
Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729 (1984).

These cases, and others like them, make clear that, absent
strict scrutiny triggered by a suspect classification or
fundamental interest, a statute may not be invalidated simply
because it fails to implement the perceived intentions ascribed
to the drafters in a tidy and estimable manner. The Court has
further made clear that a “legislative choice is not subject to
courtroom fact-finding and may be based on rational
speculation unsupported by evidence or empirical data.”
Beach Communications, 508 U.S. at 315. It is enough that a
conceivable rationale is “arguable” to “immuniz{e]” the
Congressional choice from constitutional challenge. /d. at
320.

No lesser standard should apply where the issue is not
only the invalidation, but the rewriting of a statute’s
unambiguous words. Thus courts should do so only where the
constitutional test is met and not on the basis that the clear
words fail to neatly advance a supposed purpose derived from
evidence extrinsic to the statute.

IV. The Coal Act’s Express Provisions Imposing No
Retroactive Liability On Pre-Act Successors In
Interest To Signatory Operators Should Be Applied
As Written, Even Though The Act Allows Limited
Retroactive Liability Of Successors In Interest Of
Related Persons

The Coal Act is a highly complex and intricate set of
provisions which, as the Court’s opinion in Eastern
Enterprises v. Apfel details, was the product of a long history
of labor unrest in a declining industry, combined with a
legislative determination to identify funding sources to secure
lifetime health benefits to miners whose former employers

18

were not obligated or not able to provide them. 524 U.S. 498,
504-514 (1998). It accomplishes this objective by placing on
the shoulders of selected current and former coal operators and
their related persons responsibility for the future health
benefits of retired mine workers and their dependents. In most
instances, the retired miners worked for the entity charged with
financial responsibility for some period of time. In Eastern
Enterprises, the Court recognized that the Act, viewed as a
whole, is fundamentally retroactive in character. /d. at 534.
Ultimately, for that and other reasons, the Court found an
absence of rationality within the Act to be so profound, as it
relates to the “third tier” of liability, as to invalidate that
provision on constitutional grounds. /d. at 537-38 (opinion of
Justice O’Connor) (the Act “singles out certain employers to
bear a burden that is substantial in amount, based on .. .
conduct far in the past, and unrelated to any commitment that
the employers made.”’); /d. at 548-49 (Kennedy, J., concurring)
(noting the capacity of retroactive laws to “change the legal
consequences of transactions long closed . . . thus destroy[ing]
the reasonable certainty and security which are the very objects
of property ownership”).

This case presents no question whatsoever relating to
prospective liability arising from successorship—that is, from
assuming the status of a successor after the enactment of the
Act. The statutory responsibility of such entities is clear and
is not disputed here.'’ At issue in this case is only whether

'0 The Act unambiguously provides, as to “a person becom{ing] a
successor of an assigned operator after the enactment date,” that it may, but
need not, contractually undertake primary responsibility for liabilities
under the Act. If it does so, the original signatory operator will remain
liable as a guarantor. § 9706(b)(2). The “related persons” provision
applies only to acts of succession after July 20, 1992 and states that all
such successors in interest are themselves related parties. § 9701(c)(2).

Whatever the reason for this distinction in the imposition of prospective
liability of successors in interest to signatory operators and related persons,

19

retroactive liability should be imposed upon entities, like
Respondents and amicus Bellaire, who became successors in
interest to signatory operators prior to adoptior. of the Act.

Eastern’s invalidation of the Act’s most remote imposition
of retroactive liability on a former employer makes
emphatically clear that the Act’s failure to impose such
retroactive liability upon successors in interest to signatory
operators would survive any constitutional challenge.
Congress may well have considered such pre-Coal Act buyers
from signatory operators to be too remote in terms of time and
lack of any employment relationship to justify the imposition
of liability. Whatever the reason, the disfavored character of
retrospective liability makes it all but unthinkable for this
Court to infer such retroactive liability out of thin air based on
a concern for statutory symmetry.

The Government argues for recognition of just such implied
retroactive liability, based in part on the Coal Commission
Report and several statements put in the record by individual
legislators. It contends that Congress meant to cast a broad net
of liability over various corporate entities related to the
signatory operator, and specifically that it intended to reach
pre-Act successors in interest to the signatory operator. U.S.
Br. at 26-28. Most emphatically, it argues, as the D.C. Circuit
found and as the dissent below argued, that the literal language
of the Act is at odds with:

there can be no doubt that it would withstand constitutional challenge. A
concern to facilitate the sale of coal companies, as suggested by the court
below, Pet. App. 32a-33a, is one clearly rational explanation. But given
the prospective character of the legislation, it is unlikely that any such
explanation is even necessary. Congress “may take one step at a time,”
and “may select one phase of one field and apply a remedy there,
neglecting others.” Williamson v. Lee Optical, 348 U.S. 483, 489 (1955).
Congress need not select the most effective or efficient approach to any
particular problem. A court’s ability to discern a better alternative does not
permit it to legislate in Congress’ place.

20

Congress’s stated purposes of ensuring that each Combined
Benefit Fund beneficiary’s health-care costs is borne (if
possible) by the person with the most direct responsibility
for the beneficiary, and not by other signatory operators that
had no connection with the beneficiary, or by the public
fisc.

U.S. Br. at 28; 172 F.3d at 895; Pet. App.39a-40a

Amicus Bellaire submits that, for two reasons, this Court
should reject the argument of the United States and its amicus
that the statute’s language must be modified to accord with
their view of congressional intent as derived from evidence
extrinsic to the statute.

First, this form of argument is fundamentally irrelevant in
any discussion of constitutionality under rational basis review
and should be irrelevant as well to the interpretation of
language that is entirely clear and unambiguous on its face.
The supposed intentions of the drafters, as reflected in floor
statements, reports, or other advocacy, should have no bearing
on whether unmistakable legislative intent, found in the plain
language of the Act, should be given effect. Only where the
statute makes no sense—because it is self-contradictory or
because no set of facts or objectives can be conceived of under
which it is rational—is a court justified in departing from the
explicit provisions adopted by Congress.

Second, even if the statements of alleged intent are
considered, neither they nor the supposed lack of symmetry in
the statute as written is remotely adequate to justify reading
into the statute a broad provision imposing retroactive liability
on pre-Act successors in interest to signatory operators. The
general statement of intent to reach those with the “most direct
responsibility” for the retiree hardly supports imposition of
liability on successors in interest who had no notice they were
undertaking such responsibility. More generally, this Court
has made clear that statutes imposing retroactive liability are

21

to be read narrowly and scrutinized carefully. Petitioner and
its amicus cite no case where this Court has inferred the
existence of such legislative intent to impose retroactive
liability, based on extra-statutory statements of intent, or in the
absence of statutory language compelling that conclusion.
Certainly it should not do so here.

This conclusion is not altered by the fact that the Act
provides for limited retroactive liability of successors in
interest of related persons, though not those of signatory
operators. Retroactive liability for successors in interest to
related persons arises only where 1) the related persons
transfer of ownership or assets occurs between July 20, 1992
(presumptive date for determining related person status) and
October 24, 1992 (date of enactment), or 2) if the signatory
operator was out of business before July 20, 1992, between
that date and October 24, 1992. Indeed, this Court’s decision
in Eastern Enterprises, invalidating the Act’s most remote
retroactive imposition of liability upon a retiree’s former
employer, raises serious questions about the constitutionality

of retroactive liability of successors in interest to related
persons with whom the retired miner never had an
employment relationship of any sort."

'' Indeed, such pre-Act successors in interest of related persons are two
steps removed from any employment relationship with the retiree, and had
no basis on which to foresee that the acquisition might result in potentially
mammoth liabilities. In Eastern Enterprises v. Apfel, this Court
recognized that “[rjetroactivity is generally disfavored in the law.” 524
U.S. at 532. The four members of the Court who concluded that the
Commiussioner’s assignment of retired miners to Eastern Enterprises was
an unconstitutional taking, found that “Eastern cannot be forced to bear the
expense of lifetime health benefits for miners based on its activities
decades before those benefits were promised.” /d. at 537. Considering the
three factors relied upon to determine whether legislation amounts to a
regulatory taking, the plurality found that the Act had substantial economic
impact, it interfered with Eastern’s reasonable investment-backed

22

But the validity vel non of the statute’s retroactive
provisions concerning successors in interest to related persons
cannot alter the fact that it does not impose retroactive liability
on successors in interest to signatory operators. And given this
Court’s strongly expressed reservations about retroactive
legislation that imposes obligations based on conduct
undertaken before the law was enacted, it would be ironic
indeed if this Court, based on a perceived lack of legislative
symmetry, were to read into the law a retroactive provision
that Congress very clearly has not enacted.

It may be that legislators were motivated by a desire to cast
the net of liability widely, and to thus expand available sources

expectations and the nature of governmental action was unusual in that it
singled out employers to bear a substantial burden based on past conduct
that was unrelated to any commitment made or injury caused. /d. at 529-
37. Justice Kennedy concurred in the plurality’s conclusion that Congress
exceeded its constitutional bounds when it imposed “liability for events
which occurred 35 years ago” in the Coal Act. /d. at 549. Although
relying on due process instead of takings theory, Justice Kennedy also
focused on the Court’s general distrust of retroactive legislation. “[D]ue
process protection for property must be understood to incorporate our
settled tradition against retroactive laws of great severity.” /d. at 549.
Justice Kennedy agreed that application of the Coal Act to Eastern
represented one of the rare cases where Congress overstepped its otherwise
broad constitutional bounds in the area of economic legislation.

Such reasoning raises a serious question about the constitutionality of
imposing retroactive liability on successors in interest to related persons.
Assignment of any number of miners will have a significant economic
impact on the successor. It will interfere with reasonable, investment
backed expectations because at the time the successor in interest made its
purchase the Act was not in existence and future liability was completely
unknown. Finally, the government’s conduct in such a case is exactly that
which this Court found objectionable in Eastern Enterprises: imposition
of retroactive liability on parties who took no action to incur or assume
liability to pay for benefits—indeed, who had no antecedent employment
relationship at all with the beneficiary. Nonetheless, whether or not such
liability is constitutional against a takings or due process challenge is a
question for another day.

23

of funds to those with some historical connection—albeit
remote—to the original employer, as they adopted this broadly
retroactive legislation. However, there can be no doubt that
Congress refrained from imposing one additional layer of
retroactive liability—upon those who became successors in
interest to signatory operators prior to the Act. That act of
prudence obviously must be given effect by the
Commissioner’* and this Court, regardless of the other forms

2 Petitioner argues that the Commissioner’s assignment is entitled to
deference under Chevron and thus must be upheld as a reasonable exercise
of authority to administer the Act. U.S. Br. at 44-45, n.24. Chevron
deference is improper for a number of reasons. First, Chevron applies only
where an agency is resolving a particular statutory ambiguity. Chevron
U.S.A., Inc. v. Nat'l Resources Defense Council, Inc., 467 U.S. 837, 845-
46 (1984). Here, the statutory language is unambiguous. Second, even if
ambiguity existed, courts apply Chevron deference ohly to agency
decisions where the agency acts pursuant to delegated authority “to make
rules carrying the force of law,” as when it engages in adjudication or
notice-and-comment rulemaking. United States v. Mead, 121 S. Ct. 2164,
2171 (2001).

Congress delegated neither legislative authority nor adjudicatory power to
the Commissioner. Instead, the Coal Act imposes on the Commissioner
the administrative tasks of identifying miners, signatory operators and
related persons, and making assignments pursuant to Congress’
specifications. Similarly, the Act’s provisions allowing reconsideration of
assignments, see § 9706(f), are insufficient to find that Congress granted
authority to engage in adjudication. The Commissioner need only conduct
a review of the assignment “if the Commissioner finds the operator
provided evidence with the request constituting a prima facie case of
error.” § 9706(f(2). This discretionary review is not equivalent to the
rigorous procedures required for agency adjudication. The
Commissioner’s actions pursuant to the Act do not warrant Chevrun
deference.

Where Chevron deference is inapplicable, courts need only appreciate that
agencies may possess “specialized experience” meriting deference.
Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944). The Commissioner’s
assignments are not entitled to even this less deferential form of review
because the assignment of retired miners to statutorily enumerated entities

24

of retroactive liability that the Act did, in fact, impose.
CONCLUSION

The decision of the Fourth Circuit Court of Appeals should
be affirmed.

Respectfully submitted,
THOMAS A. SMOCK DONALD B. AYER ~
MICHAEL D. GLASS (Counsel of Record)
Polito & Smock, P.C. JONATHAN C. ROSE
Four Gateway Center CYNTHIA L. BAUERLY
Suite 400 Jones, Day, Reavis & Pogue
444 Liberty Avenue 51 Louisiana Avenue, N.W.
Pittsburgh, PA 15222 Washington, D.C. 20001

(412) 394-3333 (202) 879-3939

Counsel for Amicus Curiae

July 23, 2001

requires no “specialized experience” or expertise. Moreover, the brief time
period in which the Commissioner has been making assignments under
section 9706 narrows the “body of experience” that might make deference
to an agency’s “informed judgment” appropriate. /d. at 140.

In sum, the Commissioner’s decision to ignore the express language of the
Coal Act excluding successors in interest to signatory operators from
retroactive liability is not entitled to any form of deference.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0453%3A14. Public record. Not legal advice.